If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, let's say that the prosecution creates a still photograph from a surveillance tape of a bank robbery and shows it to the defendant's sister and ex-girlfriend. Can these two witnesses identify the defendant as the man in the photograph consistent with Rule 701? According to the recent opinion of the Seventh Circuit in United States v. White, 2011 WL 1261143 (7th Cir. 2011), the answer is "yes."

In White, the facts were as stated above, with Tremaine White being the defendant convicted of bank robbery after these two witnesses provided this identification testimony. After he was convicted, White appealed, claiming, inter alia, that the admission of this identification testimony violated Federal Rule of Evidence 701. The Seventh Circuit disagreed, concluding that the witness' identification

testimony met the requirements of Rule 701 and was properly admitted. Both witnesses—one his sister, the other his ex-girlfriend—were very familiar with White, and thus their opinion was "rationally based" on their perceptions. Additionally, their testimony satisfies the second prong of Rule 701 because it helped determine a fact in issue, i.e., the identity of the bank robber.

White also claimed that such identification testimony improperly invaded the province of the jury. The Seventh Circuit again disagreed, this time based upon its prior opinion in United States v. Jackson, 688 F.2d 1121 (7th Cir.1982).

In Jackson, the district court allowed a witness who had met the defendant on only one occasion to offer lay opinion testimony that he was the individual shown in a surveillance video robbing a bank. Among other things, the defendant argued that permitting such lay opinion testimony usurped the jury's function. We rejected that argument, explaining: "The jury was free to believe or disregard [the witness's] testimony; the issue of whether the defendant was the same person as the bank robber was left to the jury for its ultimate determination."

Finally, the court rejected White's argument "that lay opinion evidence on the identity of an individual shown in a surveillance photograph is only permitted if the defendant's appearance had changed since the crime or if the accused had attempted to disguise himself." According to the court, "[w]hile both circumstances would justify the admission of lay opinion testimony,...neither is required."